‘There is no obligation stemming from the conventions to incarcerate drug users who commit minor offences’

Marie Nougier (IDPC)

Friday, June 28, 2019

The INCB dedicated one of its latest series of Alerts, from June 2019, to the issue of ‘State responses to drug-related criminality’, covering decriminalisation, proportionate sentencing, the death penalty and extrajudicial killings. The Board has recently taken a more positive stance towards decriminalisation, in particular under the leadership of Werner Sipp in 2016. In April 2017, the INCB had already published an Alert on the issue, although mostly reiterating language included in the UN drug conventions. This month’s Alert goes into further detail, explaining the ‘more differentiated’ approach adopted by member states in recent years – as 26 countries have now moved towards a decriminalisation model.

The INCB clarifies that ‘there is no obligation stemming from the conventions to incarcerate drug users who commit minor offences’, adding that ‘the three conventions provide the possibility for alternatives to conviction or punishment… giving States a certain discretion in the legislative and policy choices they make in implementing their obligations under the three conventions’. The INCB also highlights (not once, but twice) how these alternatives ‘remain underutilized’ by member states. The attention given to this matter is not surprising considering the current situation globally. According to UN estimates, 1.9 million people were arrested in 2017 for the possession of drugs for personal use (61% of the total number of arrests related to drug offences), while 21% of all prisoners sentenced for drug offences are incarcerated for simple possession. Given the regular mischaracterisation of possession as trafficking, and the self-reported nature of these statistics, the negative impact of imprisonment on people who use drugs cannot be overstated.

Also positive is the INCB’s statement on sentencing for drug trafficking. Even for ‘serious offences’, the Board concludes, ‘the principle of proportionality must also continue to act as a guiding principle’. In this regard, the INCB reiterates – as it has done repeatedly since 2015, its encouragement for states that retain the death penalty for drug offences ‘to commute death sentences that have already been handed down and to consider the abolition of the death penalty for drug-related offences’. This is particularly welcome as the Philippines and Bangladesh are considering bills to reinstate the death penalty for drug offences, while Sri Lanka is about to put an end to a 43-year de facto moratorium by executing four drug offenders this weekend.

But it is on extrajudicial killings that the Board has certainly provided its most categorical remarks to date – perhaps in light of the surge in such killings in the Philippines, and to a certain extent Bangladesh, over the past years. In the Alert, the INCB considers such acts as ‘serious breaches’ to the UN drug control and human rights treaties, and ‘an affront to the most basic standard of human dignity’. The Board ends the Alert by reiterating:

‘in the strongest possible terms, its categorical and unequivocal condemnation of those acts, wherever and whenever they may occur, and calls upon all Governments concerned to put an immediate stop to such actions and to publicly commit to and undertake investigations into any person suspected of having committed, participated in, aided and abetted, encouraged, counselled or incited any such extrajudicial actions, in full observance of due legal process and the rule of law, and their prosecution and sanction, as warranted’.

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In 2011 the 1961 UN Single Convention on drugs will be in place for 50 years. In 2012 the international drug control system will exist 100 years since the International Opium Convention was signed in 1912 in The Hague. Does it still serve its purpose or is a reform of the UN Drug Conventions needed? This site provides critical background.